The Arpaio Pardon and the Constitutional Duties of the President

President Trump’s pardon of former Maricopa County, Arizona Sheriff Joe Arpaio is back in the news. This week, the Trump Justice Department filed a brief in support of Arpaio’s effort to use his pardon as a basis for asking the district court judge, whose order Arpaio disobeyed, to expunge his criminal contempt conviction so that he can obtain “vindication” for his violation of the court’s order and for his cruel, unconstitutional and unlawful actions on which it rested. Thus, we have the shocking spectacle of the Department of Justice, which vigorously and successfully prosecuted Arapio for that unlawful conduct and his contempt for the law and the legal system, and which is responsible for protecting the civil rights of all persons, now using the President’s pardon to “vindicate” and legitimize Arpaio’s violations of the fundamental rights of brown skinned residents of Maricopa County and prisoners in his custody. The sole basis for the Justice Department’s reversal of position is President Trump’s pardon.

This development thus turns attention once more to the question of whether the President abused the pardon power in the Arpaio case. That power is unquestionably extremely broad but, like other constitutional powers, its scope must be viewed in the context of other provisions of the Constitution which impose limits and consequences on its exercise. Here is why, in pardoning Arpaio, President Trump committed an especially grave violation of the duties and obligations imposed on him by the Constitution.

The Framers’ decision to divide the federal government’s powers among three branches is the bedrock of our Constitution. And the role of the judicial branch within that system to assure that government officials stay within the limits imposed by the Constitution and duly enacted laws is indispensable to the protection of all the rights and liberties the Constitution guarantees.

But as Alexander Hamilton famously explained the judiciary is also the weakest of the three branches, having neither Congress’ power of the purse nor the Executive’s power of the sword. When a court finds that a government official has acted in violation of people’s constitutional rights, it has the power to order the official to stop doing so. Enforcement of such court orders depends on the good faith compliance of government officials, or if they disagree with the court, their resort to the judicial processes of reconsideration or appeal provided by law. When government officials choose instead to simply disobey court orders, the judiciary’s only weapon is the power to hold the officials in contempt and have the Executive enforce the accompanying penalty. This is the only way the Constitution and laws can be enforced.

The President’s pardon bypassed this process altogether, even before any sentencing hearing could be held, where the same arguments the President made for the pardon, and others, could have been considered by the district court and if unsuccessful there, by higher courts. In doing so, the President stripped the court of its contempt powers, and sent the message that he could and would place government officials above the law and permit them to violate it with impunity. The Justice Department’s intervention in Arpaio’s behalf only amplifies that message.

In sending this message, the President violated his own constitutional duties.The Constitution requires the President to take an oath “to preserve, protect and defend the Constitution” and requires him “to take care that the laws be faithfully executed.” It is vital that the public understand that this pardon not only differs from all others, but more egregiously than any past pardon, violates the President’s oath and his “take care” duties and undermines the very pillars of our constitutional system and the rule of law. This is not the first time that a power the Constitution gives to the President conflicts with, and may be overridden by, other constitutional provisions. This gravest of violations of the President’s obligations and duties, together with other actions showing his disrespect for the judicial process and the independence of the Department of Justice in enforcing our laws, are a threat to all of us and deserve the strongest condemnation.